EXHIBIT 10.15
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into December 5, 2003 by and
among BizCom U.S.A., Inc., a Florida corporation (the "Purchaser") and each of
the Equipment Owners and License Owners, as such terms are defined herein and as
set forth on Schedule A to the Disclosure Letter provided for and on behalf of
the Equipment Owner and License Owner to the Purchaser.
WITNESSETH:
WHEREAS, each of the Equipment Owners and License Owners owns certain
assets, as further described herein, which it desires to sell to the Purchaser
subject to the terms and conditions set forth in this Agreement; and
WHEREAS, the Purchaser desires to purchase such assets, as further
described herein, subject to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises, and respective
representations, warranties, covenants and agreements of each of the Equipment
Owners, License Owners and Purchaser set forth in this Agreement, each of the
Equipment Owners, License Owners and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. The following terms shall have the
following respective meanings when utilized in this Agreement:
"Affiliate" shall mean, with respect to any specified Person,
any other Person which, directly or indirectly, controls, or is controlled by,
or is under common control with, such specified Person. For purposes of this
definition, the concept of "control," when used with respect to any specified
Person, shall signify the possession of the power to direct the management and
policies of such specified Person, directly or indirectly, whether through the
ownership of voting securities or partnership or other equity or ownership
interests, by contract or otherwise.
"Agreement" shall mean this Asset Purchase Agreement, together
with the Disclosure Letter and Schedules attached hereto.
"Assignment Application" shall mean an application seeking the
consent of the FCC to the assignment of the License to Purchaser.
"Assumed Obligations" shall have the meaning set forth in
Section 2.4(a) of this Agreement.
"Closing" shall have the meaning set forth in Section 3.1 of
this Agreement.
"Closing Date" shall have the meaning set forth in Section 3.1
of this Agreement.
"Communications Act" shall mean the Communications Act of
1934, as amended, and the rules, regulations and requirements promulgated
thereunder
"Disclosure Documents" shall have the meaning set forth in
Article IV Sections A. 4.17(a) and B. 4.17(a) of this Agreement.
"Disclosure Letter " shall mean the letter provided by SMR
Advisory Group, LC, a Texas limited liability company ("SMR Advisory") for and
on behalf of each of the Equipment Owner and License Owner pursuant to a limited
authorization provided or to be provided to SMR Advisory by each of the
Equipment Owners and License Owners, to Purchaser together with the Schedules
attached thereto, which Disclosure Letter and Schedules shall be deemed to be a
part of the Agreement.
"Environmental Laws" shall mean any and all Governmental Rules
relating to (i) the environment, which includes without limitation ambient air,
surface water, ground water, land surface and subsurface strata, (ii) emissions,
discharges, releases or threatened releases of any Hazardous Substance into the
environment and (iii) otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of any
Hazardous Substance.
"EPA" shall mean the United States Environmental Protection
Agency.
"Equipment Owner" shall have the meaning set forth in the
first paragraph of the Agreement.
"Purchase Price" shall have the meaning set forth in Section
2.2 of this Agreement.
"FCC" shall mean the Federal Communications Commission.
"Final Order" shall mean an action by the FCC granting its
consent and approval to the assignment of the License to Purchaser, with respect
to which (i) no action, request for stay, petition for rehearing,
reconsideration or appeal is pending, (ii) the time for filing any request,
petition or appeal has expired and (iii) the time for agency action taken on its
own motion has expired; or in the event of the filing of such request, petition
or appeal, an action which shall have been reaffirmed or upheld and with respect
to which the time for seeking further administrative or judicial review shall
have expired without the filing of any such action for further review.
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"Governmental Approvals" shall mean any authorization,
consent, approval, license, lease, ruling, permit, tariff, rate, certification,
exemption, filing or registration by or with any Governmental Entity.
"Governmental Entity" shall mean any national, federal, state
or local government, any political subdivision thereof, or any governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
agency, body or entity.
"Governmental Rules" shall mean any constitution, charter,
law, rule, treaty, regulation, ordinance, code, order, judgment, decree,
directive, guideline, policy, procedure or any similar form of decision of, or
any interpretation or administration of, any of the foregoing by, any
Governmental Entity.
"Hazardous Substance" shall mean any substance, material,
pollutant or contaminant which has been or shall be determined at any time by
any Governmental Entity to be a hazardous or toxic substance. Without limiting
the generality of the immediately preceding sentence, the term "Hazardous
Substance" shall include any hazardous material, hazardous substance, pollutant,
or contaminant, as those terms are defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act of 1976, and the Hazardous Materials
Transportation Act, and the rules, regulations and requirements promulgated
under all of them, raw materials, building materials, the products of
manufacturing activities, wastes, petroleum, and source, special nuclear and
by-product material as those terms are defined in the Atomic Energy Act of 1954,
as amended.
"Indemnified Expenses" shall mean all liabilities, damages,
claims, taxes, deficiencies, assessments, losses, penalties, interest, costs and
expenses, including without limitation fees and disbursements of trial and
appellate counsel.
"License" shall mean the license issued by the FCC for the
operation of the specialized mobile radio ("SMR") communications station in the
220-222 MHz band identified by the FCC call sign (the "FCC Call Sign") set forth
next to the name of each Person in which such license was issued (the
"Licensee(s)") as set forth on Schedule A (the "System") in the market (the
"Market") also set forth next to the name of each such Licensee on Schedule A to
the Disclosure Letter.
"Licensee(s)" shall have the meaning set forth in the
definition of the term License above and is/are identified on Schedule A to the
Disclosure Letter.
"License Owner" shall the meaning set forth in the first
paragraph of the Agreement.
"Lien" shall mean, with respect to any asset, any mortgage,
deed of trust, lien, pledge, negative pledge, hypothecation, security interest
or other charge, encumbrance or restriction of any kind, or any other type of
preferential arrangement (including any agreement to give any of the foregoing,
any conditional sale agreement, capital lease or other title retention
agreement, and the filing of or agreement to give any financing statement under
the Uniform Commercial Code of any jurisdiction) with respect to such asset, or
any imperfection of title, any right of first refusal, right of first option,
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option to purchase or any adverse claim, with respect to such asset, and
exclusive of the Assumed Obligations.
"Market" shall have the meaning set forth in the definition of
the term License above.
"Purchaser Common Stock" shall mean the common stock, par
value $.0001 per share, of Purchaser.
"Permissible Amount" shall mean, with respect to any Hazardous
Substance, such customary amounts thereof as may be commonly and lawfully
generated, stored, used, treated, disposed of otherwise handled or located on or
about the Real Property.
"Person" shall mean any individual, person, sole
proprietorship, company, corporation, partnership, joint venture, trust,
association, entity or Governmental Entity, or any group composed of any of the
foregoing.
"Purchase Price" shall have the meaning set forth in Section
2.2 of this Agreement
"Purchased Assets" shall have the meaning set forth in Section
2.1 of this Agreement.
"Purchaser" shall mean BizCom U.S.A., Inc., a Florida
corporation.
"Real Property" shall have the meaning set forth in Article IV
Section A.4.6(a) of this Agreement.
"Schedules" shall mean the disclosure schedules attached to
the Disclosure Letter which is a part hereof.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"SMR" shall mean specialized mobile radio.
"State Securities Laws" shall mean, collectively, the
securities, blue sky or other similar laws of any state of the United States of
America or of any other jurisdiction.
"System" shall have the meaning set forth in the definition of
the term License above.
"Transfer" shall mean any sale, assignment, transfer,
conveyance, exchange, gift, pledge, hypothecation, encumbrance or other
disposition of any security, including without limitation shares of Purchaser
Common Stock.
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1.2 INTERPRETATION. In this Agreement, the singular includes the plural
and the plural includes the singular; words importing any gender include the
other gender; references to statutes or regulations are to be construed as
including all statutory or regulatory provisions consolidating, amending or
replacing the statute or regulation referred to; references to "writing" include
printing, typing, lithography, facsimile reproduction and other means of
reproducing words in a tangible visible form; the words "including," "includes"
and include" shall be deemed to be followed by the words "without limitation";
references to articles, sections exhibits, annexes or schedules are to those of
this Agreement unless otherwise indicated; references to agreements and other
contractual instruments shall be deemed to include all exhibits and appendices
attached thereto and all subsequent amendments, but only to the extent such
amendments and other modifications are not prohibited by the terms of this
Agreement; and references to Persons include their respective successors and
assigns and, in the case of Governmental Entities, Persons succeeding to their
respective functions and capacities.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 SALE AND PURCHASE. Subject to the provisions of this Agreement, at
the Closing, each of the Equipment Owners and the License Owners shall sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser shall purchase
and accept delivery of, all of the assets of each of the Equipment Owner and
License Owner set forth on Schedule A and Schedule 2.1 to the Disclosure Letter
which:
(a) as each of the Equipment Owners and as to each System owned by an
Equipment Owner and being sold by the Equipment Owner to the Purchaser pursuant
hereto, will, generally, consist of the License applicable to the particular
System, and equipment comprised of five SEA repeaters with one as master, five
Trident Micro Systems controllers with interconnect and real time use logging
and documentation of use information, combining equipment, co-axial cable,
antenna, modem for interconnect and data transfer, and all right, title and
interest in and to the tower lease agreement and insurance policies relating to
the System; and
(b) as to each of the License Owners, will consist of the License
Owner's License being sold by the License Owner to the Purchaser pursuant hereto
(collectively, as to the Equipment Owners and the License Owners, the "Purchased
Assets"), free and clear of any and all Liens except as set forth in Schedule A
to the Disclosure Letter. It is specifically understood and agreed by each of
the Equipment Owners, License Owners, and Purchaser that the Equipment Owners
and License Owners are not selling to Purchaser, and Purchaser is not purchasing
from the Equipment Owners and License Owners any assets or properties of the
Equipment Owners and/or License Owners other than the Purchased Assets.
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2.2 PURCHASE PRICE FOR PURCHASED ASSETS The aggregate purchase price to
be paid by Purchaser to the Equipment Owners and License Owners for and in
consideration of the sale, transfer, assignment and conveyance to Purchaser of
the Purchased Assets shall be Eight Million Nine Hundred and Eighty Seven
Thousand Dollars ($8,987,000) (the "Purchase Price"). The Purchase Price shall
be allocated among the Equipment Owner and License Owner as determined by the
Equipment Owners and License Owners and as instructed of the Purchaser by SMR
Advisory for and on behalf of the Equipment Owners and License Owners. The
Purchaser shall also assume the aggregate amount of Assumed Obligations, if any,
set forth in Section 2.4 (a) of this Agreement.
2.3 PAYMENT OF PURCHASE PRICE. Subject to the provisions of this
Agreement, at the Closing, Purchaser shall pay the Purchase Price to the
Equipment Owners and License Owners by the delivery to SMR Advisory for and on
behalf of the Equipment Owners and License Owners of share certificates
registered in the names of the Equipment Owners and License Owners representing
an aggregate of 2,998,000 restricted shares of Purchaser Common Stock valued at
$2.50 per share in such denominations as to each of the Equipment Owners and
License Owners as SMR Advisory for and on behalf of the Equipment Owners and
License Owners shall instruct, together with certain promissory notes payable in
the amount of $1,492,000, and other good and valuable consideration.
2.4 ASSUMPTION OF OBLIGATIONS.
(a) Subject to the provisions of this Agreement, at the Closing,
Purchaser shall assume and agree to timely pay, perform, satisfy and discharge
all of the debts, liabilities, commitments, obligations, leases, contracts and
agreements of the Equipment Owners and License Owners, if any, set forth on
Schedule 2.4 to the Disclosure Letter (collectively, the "Assumed Obligations").
(b) Each of the Equipment Owners and License Owners acknowledge and
agree that each shall retain, and Purchaser shall not assume, or in any way be
responsible for, or liable with respect to, any debts, liabilities, commitments,
obligations, leases, contracts or agreements of the Equipment Owner and/or
License Owner, whether arising out of or in connection with the construction,
operation or maintenance of the Purchased Assets, or otherwise, and whether any
of such debts, liabilities, commitments, obligations, leases, contracts or
agreements of the Equipment Owner and/or License Owner shall be fixed,
contingent or otherwise, or known or unknown, other than the Assumed
Obligations. From and after the Closing Date, each of the Equipment Owners and
License Owners shall timely pay, perform, satisfy and discharge all of their
respective debts, liabilities, commitments, obligations, leases, contracts and
agreements, other than the Assumed Obligations.
ARTICLE III
CLOSING AND TERMINATION OF AGREEMENT
3.1 CLOSING. Subject to the provisions of Section 3.2 and Article IX of
this Agreement, the closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Purchaser, 0000 XX 0xx
Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 at 10 a.m., local time, ten
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(10) days after the date on which the grant of FCC consent to the assignment of
the Licenses to Purchaser or Purchaser's designee becomes a Final Order, or such
other place, time or date as each of the Equipment Owners, License Owners and
Purchaser shall mutually determine. The time and date of the Closing are
hereinafter referred to as the "Closing Date."
3.2 TERMINATION OF AGREEMENT.
(a) Notwithstanding the other provisions of this Agreement, this
Agreement may be terminated (i) at any time by the written consent of each of
the Equipment Owners, License Owners and Purchaser and (ii) at any time after
the date which is one year from and after the date of this Agreement, by
Purchaser, at its sole option, if the Closing has not occurred by that date and
if failure to close is not as the result of a breach by Purchaser. If this
Agreement is terminated pursuant to this Section 3.2(a), (i) none of the parties
hereto shall have any liability or obligation to any other party pursuant to
this Agreement; and (ii) all FCC filings, applications and other submissions
relating to the assignment of each License shall (to the extent practicable) be
withdrawn.
(b) Notwithstanding the other provisions of this Agreement, if
Purchaser breaches or fails to comply with any representation, warranty,
covenant or agreement set forth in this Agreement, and fails to cure any such
breach or fails to comply within thirty days after receiving written notice
thereof from an Equipment Owner and/or License Owner, then such Equipment Owner
and/or License Owner may, at its option, terminate this Agreement as to the
Equipment Owner and/or License Owner by delivery of written notice to such
effect to Purchaser.
(c) Notwithstanding the other provisions of this Agreement, if the
Equipment Owners and/or License Owners or any of them breaches or fails to
comply with any representation, warranty, covenant or agreement set forth in
this Agreement, and fails to cure any such breach or fails to comply within
thirty days after receiving written notice thereof from Purchaser, then
Purchaser may, at its option, terminate this Agreement by delivery of written
notice to such effect to the Equipment Owners and/or License Owners.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EQUIPMENT OWNERS AND LICENSE OWNERS
A. In order to induce Purchaser to execute and deliver this Agreement,
and to consummate the transactions contemplated hereby, each of the Equipment
Owners represents and warrants to Purchaser as follows as to the System(s) and
License(s) owned by the Equipment Owner described in Schedule A and Schedule 2.1
to the Disclosure Letter (including, without limitation, the Purchased Assets
being sold by the Equipment Owners to the Purchaser pursuant hereto):
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4.1 PURCHASED ASSETS. Schedule A and Schedule 2.1 to the Disclosure
Letter sets forth a true, correct and complete list of all of the equipment
owned by Equipment Owner and utilized in connection with the operation of the
Systems (including without limitation the Purchased Assets).
4.2 TITLE TO PURCHASED ASSETS. Equipment Owner holds good, valid and
marketable title to its Purchased Assets, free and clear of any and all Liens,
other than (i) Liens for taxes not yet due and payable, and (ii) such Liens, if
any, as may be listed on Schedule 4.2 to the Disclosure Letter.
4.3 CONDITION OF PURCHASED ASSETS. Except as set forth on Schedule A
and Schedule 2.1 to the Disclosure Letter, (a) all of the properties and assets,
owned, leased or utilized in connection with the operation of each System,
whether real, personal or mixed, including without limitation the Purchased
Assets are in good condition and repair, ordinary wear and tear excepted, are in
good operating order and are fit for the purposes for which they are used and
are intended to be used, are in conformity with the manufacturers'
specifications (including the ability to perform the functions for which it was
designed), and are in compliance with all applicable Governmental Rules
(including without limitation the Communications Act); and (b) to the best
knowledge of the Equipment Owner, the License applicable to each System is valid
and in good standing with the FCC, there is no current event or condition which
could cause the revocation by the FCC of the License relating to the System, and
there are no liens, claims or encumbrances thereon.
4.4 BOOKS AND RECORDS. The books and records of Equipment Owner
(including without limitation the books and records of account), copies of which
have previously been provided by the Equipment Owner to the Purchaser for
review, are all true, correct and complete, and fairly reflect a true record of
the Equipment Owner of the business of operating each System and the Purchased
Assets.
4.5 REAL PROPERTY LEASES.
(a) Equipment Owner does not own any real property which is
utilized in connection with the operation of the Systems.
(b) Except as set forth on Schedule 2.4 to the Disclosure Letter,
true, correct and complete copies of each real property lease to which Equipment
Owner is a party as lessee and which relates to the operation of the Systems,
and any and all amendments, modifications and extensions thereof, have
previously been delivered to Purchaser and are attached as a part of Schedule
2.4 to the Disclosure Letter.
(c) Except as set forth on Schedule 2.4 and 4.8 to the Disclosure
Letter, Equipment Owner is not in default under any real property lease to which
it is a party and which relates to the operation of the Systems, and there has
not occurred and there does not exist under any such lease, any event of default
or event which, with notice or the lapse of time or both, would constitute a
default. Equipment Owner has not received any notice of noncompliance with any
applicable Governmental Rule (including without limitation zoning regulations)
relating to any real property lease to which it is a party and which relates to
the operation of the Systems. Equipment Owner is not aware of any condemnation
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or other proceedings or any other matter which could reasonably be expected to
adversely effect the use of the property or properties which are the subject of
the leases described in Section 4.5 (b) above.
4.6 ENVIRONMENTAL MATTERS.
(a) With respect to any real property leased by Equipment Owner as
described above or utilized in connection with the operation of the Systems
(collectively, the "Real Property"), neither Equipment Owner nor any owner,
lessor or user of the Real Property has generated, manufactured, produced,
stored, used, treated, released, discharged, disposed of or otherwise handled
on, under or about the Real Property, or transported to or from the Real
Property, any Hazardous Substance.
(b) No Hazardous Substance in excess of Permissible Amounts has in
the past or is at present located on the Real Property.
(c) None of the Real Property has been listed or proposed for
listing on the National Priorities List established by the EPA or on any other
list developed or maintained by any Governmental Entity and purporting to
identify properties posing the threat of pollution or contamination due to the
presence of any Hazardous Substance. Equipment Owner has not been identified by
the EPA or any Governmental Entity as a potentially responsible party for
environmental cleanup obligations with respect to the Real Property.
(d) All activities, operations and conditions at or on any Real
Property are in substantial compliance with all applicable Environmental Laws.
4.7 NO ORDERS OR DECREES. Neither Equipment Owner nor any of the
Purchased Assets is subject to any judicial or administrative order, or any
Governmental Rule (including without limitation any ordinance or zoning
restriction) which could adversely affect, or impose any condition on, Equipment
Owner, the Systems, the Licenses, the Purchased Assets, or the transactions
contemplated hereby.
4.8 DISPUTES AND LITIGATION. Except as may otherwise be set forth in
Schedule 4.8 to the Disclosure Letter, there is no claim, arbitration,
litigation, proceeding or governmental investigation in progress, pending or
threatened against or affecting Equipment Owner or the Licenses, the Systems,
the operations of the Systems, or the Purchased Assets. Except as may otherwise
have been disclosed to Purchaser in Schedule 4.8, no dispute is in progress,
pending or threatened, involving, with or against any supplier, creditor,
customer, landlord, licensor or other Person involving Equipment Owner, the
Licenses, the Systems, the operations of the Systems, or the Purchased Assets.
Except as may otherwise be set forth in Schedule 4.8 to the Disclosure Letter,
Equipment Owner has no knowledge of any fact or circumstance which might lead it
to believe that any dispute or litigation involving or affecting the Licenses,
the Systems, the operation of the Systems, or the Purchased Assets, might arise.
None of the Equipment Owner, the Systems, the Purchased Assets, or to the
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Equipment Owner's knowledge, the Licenses, are subject to any judgment, order,
writ, injunction or decree of any Governmental Entity.
4.9 TAXES. Except as set forth on Schedule 2.4 to the Disclosure
Letter, Equipment Owner has since its inception filed all federal, state, local,
foreign and other tax returns and reports of every nature required to be filed
in connection with its ownership, use or operation of the Systems and the
Purchased Assets, and has paid all taxes shown to be due on said returns or
reports or which have otherwise become due and payable. Copies of all such tax
returns since the Equipment's Owner's inception are attached as Schedule 4.9 to
the Disclosure Letter.
4.10 COMPLIANCE WITH LAW.
(a) Except as may otherwise be set forth in Schedule 4.10 to the
Disclosure Letter, the operation of the Systems and the Purchased Assets have at
all times been conducted in accordance with all applicable Governmental Rules,
and there is no Governmental Rule which would restrict the Equipment Owner from
carrying on the business and operations of the Systems in the same manner as
presently conducted. Equipment Owner has not received any notice, claim or
complaint that it has not conducted or is not presently conducting its business
in accordance with all Governmental Rules.
(b) Equipment Owner has obtained all Governmental Approvals under
all applicable Governmental Rules in order to own and lease the Purchased
Assets, and all Governmental Approvals are in full force and effect.
(c) No proceedings have been instituted or threatened with a view
toward terminating or limiting any such Governmental Approvals and none of such
Governmental Approvals are subject to any outstanding order, decree, judgment or
stipulation, investigation or proceeding.
4.11 INSURANCE. To the extent insurable, the Purchased Assets are
insured under policies of fire, casualty, liability and other forms of insurance
in an amount not less than the actual replacement value of the insurable
Purchased Assets. True, correct and complete copies of all such insurance
policies are attached as Schedule 4.11 to the Disclosure Letter.
4.12 NO EMPLOYEES. Equipment Owner has never employed any person as an
employee in connection with its ownership or operation of the Purchased Assets.
4.13 COMPLIANCE WITH CERTAIN INSTRUMENTS. Except as may be set forth in
Schedule 4.13 to the Disclosure Letter, Equipment Owner is in full compliance
with all of the provisions of each and every one of the agreements, contracts,
leases, notes, mortgages, commitments and undertakings to which it is a party or
by which it or any of its properties or assets is bound and which relates to the
operation of the Systems or the Purchased Assets. Except as previously disclosed
to Purchaser and as set forth as part of Schedule 4.13 to the Disclosure Letter,
Equipment Owner has not received any notice, whether oral or written, to the
effect that a default has occurred under any of the provisions of any such
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agreements, contracts, leases, notes, mortgages, commitments or undertakings,
and Equipment Owner is not aware of any fact which would lead it to believe that
any such default (with or without the giving of notice or the lapse of time or
both) has occurred. Except as previously disclosed to Purchaser, Equipment Owner
has not waived any right or remedy under any of such agreements, contracts,
leases, notes, mortgages, commitments or undertakings.
4.14 WAIVERS, CONSENTS AND APPROVALS; CONFLICT WITH OTHER INSTRUMENTS.
Except for any required waivers, consents or approvals set forth on Schedule
4.14 to the Disclosure Letter, the execution, delivery and performance by
Equipment Owner and the consummation of the transactions contemplated hereby:
(a) do not and will not violate (with or without the giving of
notice or the lapse of time or both), or require any consent or approval from,
any Person (including without limitation any Governmental Entity, any bank or
other financial institution, any creditor or any landlord); and
(b) do not and will not require any consent or approval under, and
do not and will not conflict with, or result in the breach, violation or
termination of any provision of, or constitute a default under, or result in the
acceleration of the performance of the obligations of Equipment Owner under, or
result in the creation of any Lien upon any or all of the Purchased Assets
pursuant to, any indenture, mortgage, deed of trust, lease, licensing agreement,
contract, instrument or other agreement, or any Governmental Rule, to which
Equipment Owner is a party or by which Equipment Owner, the Systems or any of
the Purchased Assets are bound.
4.15 AUTHORITY; GOOD STANDING. Equipment Owner has all requisite power
and authority to enter into this Agreement, and the agreements contemplated
hereby, and to perform its obligations hereunder and thereunder and to transfer
to Purchaser all of its right, title and interest in and to the Purchased Assets
(including without limitation the Licenses). This Agreement and each and every
agreement, document and instrument contemplated hereby have been or will be duly
executed and delivered on behalf of Equipment Owner and constitutes or will
constitute the legal, valid and binding obligation of Equipment Owner and are or
will be enforceable against Equipment Owner in accordance with their respective
terms except as may be limited or otherwise effected by and subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar
statutes, rules, regulations, or other laws affecting the enforceability of
creditors' rights and remedies generally, and laws relating to the availability
of specific performance, injunctive relief or other equitable remedies.
Equipment Owner is in good standing in the jurisdiction of its organization as
evidenced by the good standing certificate which comprises Schedule 4.15 of the
Disclosure Letter.
4.16 SOPHISTICATED INVESTOR. Equipment Owner acknowledges that it has
such knowledge and experience in financial, business and investment matters,
including the telecommunications industry and the 220-222 MHz segment of such
industry specifically , that it is capable of evaluating the terms and
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conditions, merits and risks of the transactions described herein and the
investment contemplated hereby, and therefore considers itself a sophisticated
investor in connection with the investment contemplated hereby.
4.17 INFORMATION.
(a) Equipment Owner acknowledges its receipt and review of the
following documents with respect to Purchaser (collectively, the "Disclosure
Documents"):
Purchaser's Form 10-KSB, as amended, for the fiscal year ended
June 30, 2003, Purchaser's Form 10-QSB for the quarter ended September 30, 2003,
each as filed by the Purchaser with the SEC, and Form 8-K filed by the Purchaser
with the SEC on November 26, 2003.
(b) Equipment Owner has had the opportunity, through SMR Advisory,
to ask questions of, and to receive answers from, officers and employees of
Purchaser concerning the Purchaser, its businesses, affairs and operations, and
the transactions contemplated by this Agreement, and to obtain any additional
information necessary to verify the accuracy of the Disclosure Documents.
4.18 EVALUATION OF INFORMATION. Equipment Owner, by virtue of its
equity owners' education, training and experience, has such knowledge and
experience in financial, investment and business matters generally, and in the
telecommunications industry and the 220-222 MHz SMR segment of such industry
specifically, that it is capable of understanding the information (including
without limitation the Disclosure Documents) provided to it by Purchaser and of
evaluating the merits and risks of its investment in the shares of Purchaser
Common Stock to be issued to it pursuant to this Agreement.
4.19 ACKNOWLEDGMENT OF RISKS. Equipment Owner understands and
acknowledges that there are significant risks to be considered in connection
with its investment in the shares of Purchaser Common Stock to be issued to it
pursuant to this Agreement, including without limitation the risks and factors
which might effect future operating results set forth in the Disclosure
Documents.
4.20 INVESTMENT AND RELATED MATTERS. The shares of Purchaser Common
Stock to be issued to Equipment Owner pursuant to this Agreement are being
acquired by Equipment Owner for its own account, and not for the account or
beneficial interest of any other Person. The shares of Purchaser Common Stock to
be issued to Equipment Owner pursuant to this Agreement are not being acquired
by Equipment Owner with a view to, or for resale in connection with, any
"distribution" within the meaning of the Securities Act or any applicable State
Securities Laws.
The Equipment Owner further represents and warrants to the Purchaser
that:
(a) its plan or agreement to transfer the Purchased Assets does not
provide for:
12
(1) the dissolution of the Equipment Owner; or
(2) a pro rata or similar distribution of securities of the
Purchaser to the members of the Equipment Owner who voted or consented to
transfer such Purchased Assets; and
(b) the representatives and/or members of the Equipment Owner will not
adopt resolutions relative to (a)(1) or (2) within one year after the taking of
such vote of consent to transfer such assets;
(c) the transfer of the Purchased Assets is not part of a pre-existing
plan for distribution of Purchaser Common Stock, notwithstanding (a) or (b)
above; and
(d) the Equipment Owner will comply in all respects with applicable
corporate or limited liability company laws, rules, and regulations, as may be
applicable to Equipment Owner, and applicable federal and state securities laws
in connection with its receipt of Purchaser Common Stock and any later proposed
subsequent dispositions thereof, if any, and provide evidence thereof
satisfactory to Purchaser prior thereto; and
(e) the shares of Purchaser Common Stock to be issued to Equipment
Owner pursuant to this Agreement shall be subject to the lock-up provisions set
forth in the limited authorization provided by the Equipment Owner to SMR
Advisory.
4.21 RESIDENCE. The address of Equipment Owner is correctly set forth
on Schedule A to the Disclosure Letter. Equipment Owner is a resident of the
State indicated on Schedule A to the Disclosure Letter.
4.22 RESTRICTED SECURITIES.
(a) The shares of Purchaser Common Stock to be issued to Equipment
Owner pursuant to this Agreement have not been, and will not be, registered
under the Securities Act or any State Securities Laws and, as such, must be held
by Equipment Owner unless and until they are subsequently so registered under
the Securities Act and any applicable State Securities Laws or an exemption from
registration thereunder is available. The shares of Purchaser Common Stock to be
issued to Equipment Owner hereunder constitute "restricted securities," as that
term is defined in Rule 144 promulgated by the SEC under the Act.
(b) Equipment Owner shall not Transfer any or all of the shares of
Purchaser Common Stock to be issued to it pursuant to this Agreement, unless
such Transfer is registered under the Securities Act and any applicable State
Securities Laws or a specific exemption from registration thereunder is
available. Any Transfer of any or all of the shares of Purchaser Common Stock to
be issued to Equipment Owner pursuant to this Agreement which is made pursuant
to an exemption claimed under the Securities Act and any applicable State
Securities Laws will require a favorable opinion of Equipment Owner's legal
13
counsel, in form and in substance satisfactory to Purchaser and its legal
counsel, to the effect that such Transfer does not and will not violate the
provisions of the Securities Act or any applicable State Securities Laws or the
terms of this Agreement.
(c) Purchaser is not under any obligation whatsoever to file any
registration statement under the Securities Act or any State Securities Laws, to
register any Transfer of any shares of Purchaser Common Stock to be issued
pursuant to this Agreement, or to take any other action necessary for the
purpose of making an exemption from registration available to Equipment Owner in
connection with any such Transfer. Stop transfer instructions will be issued by
Purchaser with respect to the shares of Purchaser Common Stock to be issued to
Equipment Owner pursuant to this Agreement.
4.23 RESTRICTIVE LEGEND. There will be placed upon all of the
certificates representing shares of Purchaser Common Stock delivered to
Equipment Owner, and any and all certificates delivered in partial or total
substitution therefor, a restrictive legend which will read substantially as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES
ACT") AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS (A) THEY ARE
COVERED BY A REGISTRATION STATEMENT OR POST- EFFECTIVE AMENDMENT
THERETO, EFFECTIVE UNDER THE SECURITIES ACT, OR (B) SUCH SALE,
ASSIGNMENT, TRANSFER, CONVEYANCE, PLEDGE, HYPOTHECATION, ENCUMBRANCE OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN LOCK-UP RESTRICTIONS WITH THE COMPANY.
4.24 NO BROKERAGE. No broker, finder or Person acting in a similar
capacity has been employed or retained by Equipment Owner, or by any of its
respective Affiliates, in connection with the transactions contemplated by this
Agreement, and no Person is entitled to receive any brokerage, finders' or
similar fee or commission in connection with this Agreement and the transactions
contemplated hereby.
4.25 THE SCHEDULES. All of the facts recited in all of the Schedules to
the Disclosure Letter applicable to the Equipment Owner are true, correct and
complete and shall be deemed to be representations and warranties of fact as
though set forth in this Article IV.
4.26 TRANSFERS, ASSIGNMENTS AND CONVEYANCES. At or prior to the
Closing, the Equipment Owner shall sell, transfer, assign and convey to
Purchaser all of its right, title and interest in and to its Licenses applicable
to the Systems, any tower site lease and insurance policy relating to the
subject Systems (and shall cause to be provided to the Purchaser written
evidence thereof satisfactory to the Purchaser, including copies of same to be
14
included as part of Schedule 2.4 to the Disclosure Letter and arrearages, if
any, concerning same).
4.27 FULL DISCLOSURE. No representation or warranty made by Equipment
Owner in this Agreement, and no certification to be furnished by Equipment Owner
to Purchaser pursuant to this Agreement, contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary to make the statements contained herein or therein not misleading.
B. In order to induce Purchaser to execute and deliver this Agreement,
and to consummate the transactions contemplated hereby, each of the License
Owners represents and warrants to Purchaser as follows as to the License(s)
owned by the License Owner described in Schedule A and Schedule 2.1 to the
Disclosure Letter (including, without limitation, the Purchased Assets being
sold by the License Owner to the Purchaser pursuant hereto):
4.1 PURCHASED ASSETS. Schedule A and Schedule 2.1 to the Disclosure
Letter sets forth a true, correct and complete list of all of the Licenses owned
by License Owner being sold pursuant hereto (including without limitation the
Purchased Assets).
4.2 TITLE TO PURCHASED ASSETS. License Owner holds good, valid and
marketable title to its Purchased Assets, except as set forth in Schedule A to
the Disclosure Letter, free and clear of any and all Liens, other than (i) Liens
for taxes not yet due and payable, and (ii) such Liens, if any, as may be listed
on Schedule 4.2 to the Disclosure Letter.
4.3 CONDITION OF PURCHASED ASSETS. Except as set forth on Schedule A
and Schedule 2.1 to the Disclosure Letter, (a) all of the Licenses are in
compliance with all applicable Governmental Rules (including without limitation
the Communications Act); and (b) to the best knowledge of the License Owner, the
Licenses are valid and in good standing with the FCC, there is no current event
or condition which could cause the revocation by the FCC of any of the Licenses
and there are no liens, claims or encumbrances thereon.
4.4 BOOKS AND RECORDS. The books and records of License Owner
(including without limitation the books and records of account), copies of which
have previously been provided by the License Owner to the Purchaser for review,
are all true, correct and complete, and fairly reflect a true record of the
License Owner relating to its ownership of the Licenses.
4.5 REAL PROPERTY LEASES. License Owner does not own or lease any real
property which is utilized in connection with its ownership of the Licenses.
4.6 [INTENTIONALLY LEFT BLANK]
15
4.7 NO ORDERS OR DECREES. Neither License Owner nor any of the
Purchased Assets is subject to any judicial or administrative order, or any
Governmental Rule (including without limitation any ordinance or zoning
restriction) which could adversely affect, or impose any condition on, License
Owner, the Licenses, the Purchased Assets, or the transactions contemplated
hereby.
4.8 DISPUTES AND LITIGATION. Except as may otherwise be set forth in
Schedule 4.8 to the Disclosure Letter, there is no claim, arbitration,
litigation, proceeding or governmental investigation in progress, pending or
threatened against or affecting License Owner, the Licenses or the Purchased
Assets. Except as may otherwise have been disclosed to Purchaser in Schedule
4.8, no dispute is in progress, pending or threatened, involving, with or
against any supplier, creditor, customer, landlord, licensor or other Person
involving License Owner, the Licenses or the Purchased Assets. Except as may
otherwise be set forth in Schedule 4.8 to the Disclosure Letter, License Owner
has no knowledge of any fact or circumstance which might lead it to believe that
any dispute or litigation involving or affecting the Licenses or the Purchased
Assets, might arise. None of the License Owner, the Purchased Assets, or to the
License Owner's knowledge, the Licenses, are subject to any judgment, order,
writ, injunction or decree of any Governmental Entity.
4.9 TAXES. Except as set forth on Schedule 2.4 to the Disclosure
Letter, License Owner has since its inception filed all federal, state, local,
foreign and other tax returns and reports of every nature required to be filed
in connection with its ownership of the Licenses and the Purchased Assets, and
has paid all taxes shown to be due on said returns or reports or which have
otherwise become due and payable. Copies of all such tax returns since the
Equipment's Owner's inception are attached as Schedule 4.9 to the Disclosure
Letter.
4.10 COMPLIANCE WITH LAW.
(a) Except as may otherwise be set forth in Schedule 4.10 to the
Disclosure Letter, the ownership of the Licenses has at all times been in
accordance with all applicable Governmental Rules, and there is no Governmental
Rule which would restrict the License Owner in connection therewith or the sale
thereof. License Owner has not received any notice, claim or complaint that it
has not conducted or is not presently conducting its business in accordance with
all Governmental Rules.
(b) License Owner has obtained all Governmental Approvals under
all applicable Governmental Rules in order to own the Licenses and the Purchased
Assets, and all Governmental Approvals are in full force and effect.
(c) No proceedings have been instituted or threatened with a view
toward terminating or limiting any such Governmental Approvals and none of such
Governmental Approvals are subject to any outstanding order, decree, judgment or
stipulation, investigation or proceeding.
16
4.11 INSURANCE. To the extent insurable, the Purchased Assets are
insured under policies of fire, casualty, liability and other forms of insurance
in an amount not less than the actual replacement value of the insurable
Purchased Assets. True, correct and complete copies of all such insurance
policies are attached as Schedule 4.11 to the Disclosure Letter.
4.12 NO EMPLOYEES. License Owner has never employed any person as an
employee in connection with its ownership of the Purchased Assets.
4.13 COMPLIANCE WITH CERTAIN INSTRUMENTS. Except as may be set forth in
Schedule 4.13 to the Disclosure Letter, License Owner is in full compliance with
all of the provisions of each and every one of the agreements, contracts,
leases, notes, mortgages, commitments and undertakings to which it is a party or
by which it or any of its properties or assets is bound and which relates to the
ownership of the Licenses or the Purchased Assets. Except as previously
disclosed to Purchaser and as set forth as part of Schedule 4.13 to the
Disclosure Letter, License Owner has not received any notice, whether oral or
written, to the effect that a default has occurred under any of the provisions
of any such agreements, contracts, leases, notes, mortgages, commitments or
undertakings, and License Owner is not aware of any fact which would lead it to
believe that any such default (with or without the giving of notice or the lapse
of time or both) has occurred. Except as previously disclosed to Purchaser,
License Owner has not waived any right or remedy under any of such agreements,
contracts, leases, notes, mortgages, commitments or undertakings.
4.14 WAIVERS, CONSENTS AND APPROVALS; CONFLICT WITH OTHER INSTRUMENTS.
Except for any required waivers, consents or approvals set forth on Schedule
4.14 or Schedule A to the Disclosure Letter, the execution, delivery and
performance by License Owner and the consummation of the transactions
contemplated hereby:
(a) do not and will not violate (with or without the giving of
notice or the lapse of time or both), or require any consent or approval from,
any Person (including without limitation any Governmental Entity, any bank or
other financial institution, any creditor or any landlord); and
(b) do not and will not require any consent or approval under, and
do not and will not conflict with, or result in the breach, violation or
termination of any provision of, or constitute a default under, or result in the
acceleration of the performance of the obligations of License Owner under, or
result in the creation of any Lien upon any or all of the Purchased Assets
pursuant to, any indenture, mortgage, deed of trust, lease, licensing agreement,
contract, instrument or other agreement, or any Governmental Rule, to which
License Owner is a party or by which License Owner, the Licenses, or any of the
Purchased Assets are bound.
4.15 AUTHORITY; GOOD STANDING. License Owner has all requisite power
and authority to enter into this Agreement, and the agreements contemplated
hereby, and to perform its obligations hereunder and thereunder and to transfer
to Purchaser all of its right, title and interest in and to the Purchased Assets
17
(including without limitation the Licenses). This Agreement and each and every
agreement, document and instrument contemplated hereby have been or will be duly
executed and delivered on behalf of License Owner and constitutes or will
constitute the legal, valid and binding obligation of License Owner and are or
will be enforceable against License Owner in accordance with their respective
terms except as may be limited or otherwise effected by and subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar
statutes, rules, regulations, or other laws affecting the enforceability of
creditors' rights and remedies generally, and laws relating to the availability
of specific performance, injunctive relief or other equitable remedies. License
Owner is in good standing in the jurisdiction of its organization as evidenced
by the good standing certificate which comprises Schedule 4.15 of the Disclosure
Letter.
4.16 SOPHISTICATED INVESTOR. License Owner acknowledges that it has
such knowledge and experience in financial, business and investment matters,
including the telecommunications industry and the 220-222 MHz segment of such
industry specifically , that it is capable of evaluating the terms and
conditions, merits and risks of the transactions described herein and the
investment contemplated hereby, and therefore considers itself a sophisticated
investor in connection with the investment contemplated hereby.
4.17 INFORMATION.
(a) License Owner acknowledges its receipt and review of the
following documents with respect to Purchaser (collectively, the "Disclosure
Documents"):
Purchaser's Form 10-KSB, as amended, for the fiscal year ended
June 30, 2003, Purchaser's Form 10-QSB for the quarter ended September 30, 2003,
each as filed by the Purchaser with the SEC, and Form 8-K filed by the Purchaser
with the SEC on November 26, 2003.
(b) Equipment Owner has had the opportunity, through SMR Advisory,
to ask questions of, and to receive answers from, officers and employees of
Purchaser concerning the Purchaser, its businesses, affairs and operations, and
the transactions contemplated by this Agreement, and to obtain any additional
information necessary to verify the accuracy of the Disclosure Documents.
4.18 EVALUATION OF INFORMATION. License Owner, by virtue of its equity
owners' education, training and experience, has such knowledge and experience in
financial, investment and business matters generally, and in the
telecommunications industry and the 220-222 MHz SMR segment of such industry
specifically, that it is capable of understanding the information (including
without limitation the Disclosure Documents) provided to it by Purchaser and of
evaluating the merits and risks of its investment in the shares of Purchaser
Common Stock to be issued to it pursuant to this Agreement.
4.19 ACKNOWLEDGMENT OF RISKS. License Owner understands and
acknowledges that there are significant risks to be considered in connection
with its investment in the shares of Purchaser Common Stock to be issued to it
pursuant to this Agreement, including without limitation the risks and factors
18
which might effect future operating results set forth in the Disclosure
Documents.
4.20 INVESTMENT AND RELATED MATTERS. The shares of Purchaser Common
Stock to be issued to License Owner pursuant to this Agreement are being
acquired by License Owner for its own account, and not for the account or
beneficial interest of any other Person. The shares of Purchaser Common Stock to
be issued to License Owner pursuant to this Agreement are not being acquired by
License Owner with a view to, or for resale in connection with, any
"distribution" within the meaning of the Securities Act or any applicable State
Securities Laws.
The License Owner further represents and warrants to the Purchaser
that:
(a) its plan or agreement to transfer the Purchased Assets does not
provide for:
(1) the dissolution of the License Owner; or
(2) a pro rata or similar distribution of securities of the
Purchaser to the members of the License Owner who voted or consented to transfer
such Purchased Assets; and
(b) the representatives and/or members of the License Owner will not
adopt resolutions relative to (a)(1) or (2) within one year after the taking of
such vote of consent to transfer such assets;
(c) the transfer of the Purchased Assets is not part of a pre-existing
plan for distribution of Purchaser Common Stock, notwithstanding (a) or (b)
above; and
(d) the License Owner will comply in all respects with applicable
corporate or limited liability company laws, rules, and regulations, as may be
applicable to License Owner, and applicable federal and state securities laws in
connection with its receipt of Purchaser Common Stock and any later proposed
subsequent dispositions thereof, if any, and provide evidence thereof
satisfactory to Purchaser prior thereto; and
(e) the shares of Purchaser Common Stock to be issued to License Owner
pursuant to this Agreement shall be subject to the lock-up provisions set forth
in the limited authorization provided by the License Owner to SMR Advisory.
4.21 RESIDENCE. The address of License Owner is correctly set forth on
Schedule A to the Disclosure Letter. License Owner is a resident of the State
indicated on Schedule A to the Disclosure Letter.
4.22 RESTRICTED SECURITIES.
19
(a) The shares of Purchaser Common Stock to be issued to License
Owner pursuant to this Agreement have not been, and will not be, registered
under the Securities Act or any State Securities Laws and, as such, must be held
by License Owner unless and until they are subsequently so registered under the
Securities Act and any applicable State Securities Laws or an exemption from
registration thereunder is available. The shares of Purchaser Common Stock to be
issued to License Owner hereunder constitute "restricted securities," as that
term is defined in Rule 144 promulgated by the SEC under the Act.
(b) License Owner shall not Transfer any or all of the shares of
Purchaser Common Stock to be issued to it pursuant to this Agreement, unless
such Transfer is registered under the Securities Act and any applicable State
Securities Laws or a specific exemption from registration thereunder is
available. Any Transfer of any or all of the shares of Purchaser Common Stock to
be issued to License Owner pursuant to this Agreement which is made pursuant to
an exemption claimed under the Securities Act and any applicable State
Securities Laws will require a favorable opinion of License Owner's legal
counsel, in form and in substance satisfactory to Purchaser and its legal
counsel, to the effect that such Transfer does not and will not violate the
provisions of the Securities Act or any applicable State Securities Laws or the
terms of this Agreement.
(c) Purchaser is not under any obligation whatsoever to file any
registration statement under the Securities Act or any State Securities Laws, to
register any Transfer of any shares of Purchaser Common Stock to be issued
pursuant to this Agreement, or to take any other action necessary for the
purpose of making an exemption from registration available to License Owner in
connection with any such Transfer. Stop transfer instructions will be issued by
Purchaser with respect to the shares of Purchaser Common Stock to be issued to
License Owner pursuant to this Agreement.
4.23 RESTRICTIVE LEGEND. There will be placed upon all of the
certificates representing shares of Purchaser Common Stock delivered to License
Owner, and any and all certificates delivered in partial or total substitution
therefor, a restrictive legend which will read substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES
ACT") AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS (A) THEY ARE
COVERED BY A REGISTRATION STATEMENT OR POST- EFFECTIVE AMENDMENT
THERETO, EFFECTIVE UNDER THE SECURITIES ACT, OR (B) SUCH SALE,
ASSIGNMENT, TRANSFER, CONVEYANCE, PLEDGE, HYPOTHECATION, ENCUMBRANCE OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN LOCK-UP RESTRICTIONS WITH THE COMPANY.
20
4.24 NO BROKERAGE. No broker, finder or Person acting in a similar
capacity has been employed or retained by License Owner, or by any of its
respective Affiliates, in connection with the transactions contemplated by this
Agreement, and no Person is entitled to receive any brokerage, finders' or
similar fee or commission in connection with this Agreement and the transactions
contemplated hereby.
4.25 THE SCHEDULES. All of the facts recited in all of the Schedules to
the Disclosure Letter applicable to the License Owner are true, correct and
complete and shall be deemed to be representations and warranties of fact as
though set forth in this Article IV.
4.26 TRANSFERS, ASSIGNMENTS AND CONVEYANCES. At or prior to the
Closing, the License Owner shall sell, transfer, assign and convey to Purchaser
all of its right, title and interest in and to its Licenses which are the
subject of this Agreement (and shall cause to be provided to the Purchaser
written evidence thereof satisfactory to the Purchaser, including evidence of
arrearages, if any, concerning same).
4.27 FULL DISCLOSURE. No representation or warranty made by License
Owner in this Agreement, and no certification to be furnished by License Owner
to Purchaser pursuant to this Agreement, contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary to make the statements contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
In order to induce each of the Equipment Owner and License Owner to
enter into this Agreement, and to consummate the transactions contemplated
hereby, Purchaser represents and warrants to each of the Equipment Owner and
License Owner, as follows:
5.1 CORPORATE ORGANIZATION AND GOOD STANDING. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida as evidenced by the recently dated good standing
certificate issued by the Florida Secretary of State and provided by the
Purchaser to each of the Equipment Owner and License Owner at the Closing.
Purchaser is qualified to transact business as a foreign corporation in every
jurisdiction where the character of its activities requires such qualification.
Purchaser has all requisite corporate power, franchises, licenses and authority
to own, lease and operate its respective assets and properties and to carry on
its business as presently conducted.
5.2 AUTHORITY. Purchaser has all requisite corporate power and
authority to enter into this Agreement, and the agreements contemplated hereby,
and to perform its obligations hereunder and thereunder. The execution, delivery
and performance of this Agreement and the agreements, documents and instruments
contemplated hereby by Purchaser have all been duly authorized by all necessary
corporate action of Purchaser. This Agreement and the agreements, documents and
instruments contemplated hereby have been or will be duly executed and delivered
by Purchaser and constitute or will constitute the legal, valid and binding
obligation of Purchaser and are or will be enforceable against Purchaser in
accordance with their respective terms except as may be limited or otherwise
effected by and subject to bankruptcy, insolvency, reorganization, fraudulent
21
conveyance or other similar statutes, rules, regulations, or other laws
affecting the enforceability of creditors' rights and remedies generally, and
laws relating to the availability of specific performance, injunctive relief or
other equitable remedies.
5.3 CONSENTS AND CONFLICTS. Except as set forth on Schedule 4.14 to the
Disclosure Letter, the execution, delivery and performance of this Agreement by
Purchaser and the consummation of the transactions contemplated hereby:
(a) do not and will not violate (with or without the giving of
notice or the lapse of time or both), or require any consent or approval from,
any Person (including without limitation any Governmental Entity, any bank or
other financial institution, any creditor or any landlord); and
(b) do not and will not require any consent or approval under, and
do not and will not conflict with, or result in the breach, violation or
termination of any provision of or constitute a default under, or result in the
acceleration of the performance of the obligations of Purchaser under, or result
in the creation of any Lien upon any of the assets and properties of Purchaser
pursuant to, any indenture, mortgage, deed of trust, lease, licensing agreement,
contract, instrument or other agreement, or any Governmental Rule, to which
Purchaser is a party or by which Purchaser or any of its assets or properties
are bound.
5.4 PURCHASER COMMON STOCK. Upon their issuance by Purchaser and
delivery to Equipment Owner and License Owner, the shares of Purchaser Common
Stock to be issued pursuant to this Agreement will be duly and validly issued,
fully paid and nonassessable.
5.5 NO BROKERAGE. No broker, finder or Person acting in a similar
capacity has been employed or retained by Purchaser, or by any of its
Affiliates, in connection with the transactions contemplated by this Agreement,
and no Person is entitled to receive any brokerage, finders' or similar fee or
commission in connection with this Agreement and the transactions contemplated
hereby.
ARTICLE VI
COVENANTS AND AGREEMENTS OF EQUIPMENT OWNERS AND LICENSE
OWNERS PENDING CLOSING
A. As to each of the Equipment Owners and the Licenses, Systems, and
Purchased Assets being sold by each of the Equipment Owners to the Purchaser
pursuant hereto:
6.1 ORDINARY COURSE. From and after the date of this Agreement and
through the Closing Date, the Equipment Owner shall cause the Purchased Assets
and the subject Systems to be operated only in the ordinary and usual course of
business. Without limiting the generality of the immediately preceding sentence,
from and after the date of this Agreement and through the Closing Date, the
22
Equipment Owner shall not, directly or indirectly, without the prior written
approval of Purchaser, and as to each of the Licenses pertaining to each of the
Systems to which it relates:
(a) incur any debt, liability or obligation, make any commitment or
disbursement, acquire or dispose of any property or asset, make or modify any
lease, contract or agreement, or engage in any transaction, with regard to the
License, the System or the Purchased Assets, other than in the ordinary and
usual course of its business;
(b) issue any purchase order for goods, assets or services, other
than in the ordinary and usual course of its business, or make any capital
expenditure, other than those required to maintain the Purchased Assets in a
state of ordinary and usual repair;
(c) subject the License or any of the Purchased Assets to any Lien;
(d) employ as an employee any Person in connection with the
operation of the System;
(e) sell, lease, assign, convey or transfer the License or any or
all of the Purchased Assets, or agree to sell, lease, assign, convey or transfer
the License or any or all of the Purchased Assets;
(f) cancel, amend or modify any policy of insurance or permit any
such policy to lapse or terminate;
(g) commit any unlawful act or breach or violate any Governmental
Rule;
(h) take any action which would have an adverse effect on the
System, the License or any of the Purchased Assets, including without limitation
the value or condition thereof;
(i) do anything, or fail to do anything, which would cause a breach
or default in any contract, agreement, commitment or obligation to which the
Equipment Owner is a party or by which the Equipment Owner, the License, the
System, or any of the Purchased Assets may be bound; or
(j) engage in any activity or enter into any transaction which
would be inconsistent with any of the representations and warranties of the
Equipment Owner set forth in this Agreement if such representations and
warranties were made as of a date subsequent to such activity or transaction and
all references to the date of this Agreement were deemed to be such latter date.
6.2 FURNISHING OF INFORMATION. The Equipment Owner shall (a) provide to
Purchaser and its representatives, during normal business hours or otherwise if
so requested, full access to all of the properties, assets, personnel, books,
agreements, commitments, files and records of the Equipment Owner with respect
23
to the License, the System and the Purchased Assets, in whatever form; (b)
furnish to Purchaser and its representatives all data and information concerning
the business, operations, assets, properties, liabilities, revenues, expenses
and affairs of the System and the Purchased Assets as Purchaser and its
representatives may reasonably request; (c) use its best efforts to cause the
past and present auditors, if any, and accounting personnel of the Equipment
Owner to make available to Purchaser and its representatives all financial
information relating to the System and the Purchased Assets as is reasonably
requested, including the right to examine all working papers pertaining to
audits and reviews previously or hereafter made by such auditors, if any; (d)
provide such cooperation as Purchaser and its representatives may reasonably
request in connection with any audit or review of the License, the System, or
the Purchased Assets which Purchaser may direct its representatives to make; (e)
furnish to Purchaser and its representatives true, correct and complete copies
of all financial and operating statements of the System and the Purchased
Assets, and all documents, agreements and instruments described herein or listed
in the Schedules relating thereto; and (f) permit Purchaser and its
representatives (including its subcontractors) to conduct during normal business
hours environmental audits of the Real Property, which audits may include,
without limitation placement of xxxxx to conduct soil and ground water analysis,
site inspections and inspection of all permits and/or licenses relating to
Environmental Laws.
6.3 BUSINESS ORGANIZATION INTACT. The Equipment Owner shall use its
best efforts to preserve and keep intact the business organization of the
Equipment Owner.
6.4 EXCLUSIVE DEALING. From and after the date of this Agreement and
through the Closing Date, the Equipment Owner shall not, directly or indirectly,
encourage, initiate or engage in any discussions or negotiations with, or
provide any information to, any Person, other than Purchaser and its
representatives, concerning (a) the sale of all or substantially all of the
License, the System or any of the Purchased Assets or (b) any other transaction
not in the ordinary and usual course of business of operating the System and the
Purchased Assets.
6.5 ASSIGNMENT APPLICATION AND RELATED MATTERS. Promptly following the
execution and delivery of this Agreement and through the Closing, the Equipment
Owner shall: (a) cooperate with Purchaser in the preparation of its portion of
the Assignment Application applicable to each License, as applicable; (b) not
sell, transfer or otherwise encumber any License to or with any other third
party; (c) continue to operate the System in the ordinary and normal course as
each such System has been operated prior to the date of execution of this
Agreement; and (d) cooperate with Purchaser in the assignment to Purchaser of
any tower lease and insurance policy relating to each such System.
6.6 REASONABLE EFFORTS. Upon the terms and subject to the conditions
set forth in this Agreement, the Equipment Owner shall use all reasonable
efforts to take, or to cause to be taken, all actions, and to do, or to cause to
be done, all things necessary, proper, convenient or advisable in order to
consummate the transactions contemplated by this Agreement.
B. As to each of the License Owners and the Licenses and Purchased
Assets being sold by each of the License Owners to the Purchaser pursuant
hereto:
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6.1 ORDINARY COURSE. From and after the date of this Agreement and
through the Closing Date, the License Owner shall cause the Purchased Assets and
the subject Licenses to be owned and utilized only in the ordinary and usual
course of business. Without limiting the generality of the immediately preceding
sentence, from and after the date of this Agreement and through the Closing
Date, the License Owner shall not, directly or indirectly, without the prior
written approval of Purchaser, and as to each of the Licenses:
(a) incur any debt, liability or obligation, make any commitment or
disbursement, acquire or dispose of any property or asset, make or modify any
lease, contract or agreement, or engage in any transaction, with regard to the
Licenses, other than in the ordinary and usual course of its business;
(b) issue any purchase order for goods, assets or services, other
than in the ordinary and usual course of its business, or make any capital
expenditure, other than those required to maintain the Purchased Assets in a
state of ordinary and usual repair;
(c) subject the Licenses or any of the Purchased Assets to any
Lien;
(d) employ as an employee any Person in connection with the
operation of the System;
(e) sell, lease, assign, convey or transfer the Licenses or any or
all of the Purchased Assets, or agree to sell, lease, assign, convey or transfer
the Licenses or any or all of the Purchased Assets;
(f) cancel, amend or modify any policy of insurance or permit any
such policy to lapse or terminate;
(g) commit any unlawful act or breach or violate any Governmental
Rule;
(h) take any action which would have an adverse effect on the
Licenses or any of the Purchased Assets, including without limitation the value
or condition thereof;
(i) do anything, or fail to do anything, which would cause a breach
or default in any contract, agreement, commitment or obligation to which the
License Owner is a party or by which the License Owner, the Licenses or any of
the Purchased Assets may be bound; or
(j) engage in any activity or enter into any transaction which
would be inconsistent with any of the representations and warranties of the
License Owner set forth in this Agreement if such representations and warranties
were made as of a date subsequent to such activity or transaction and all
references to the date of this Agreement were deemed to be such latter date.
6.2 FURNISHING OF INFORMATION. The License Owner shall (a) provide to
Purchaser and its representatives, during normal business hours or otherwise if
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so requested, full access to all of the properties, assets, personnel, books,
agreements, commitments, files and records of the License Owner with respect to
the Licenses and the Purchased Assets, in whatever form; (b) furnish to
Purchaser and its representatives all data and information concerning the
business, operations, assets, properties, liabilities, revenues, expenses and
affairs of the Licenses and the Purchased Assets as Purchaser and its
representatives may reasonably request; (c) use its best efforts to cause the
past and present auditors, if any, and accounting personnel of the License Owner
to make available to Purchaser and its representatives all financial information
relating to the Licenses and the Purchased Assets as is reasonably requested,
including the right to examine all working papers pertaining to audits and
reviews previously or hereafter made by such auditors, if any; (d) provide such
cooperation as Purchaser and its representatives may reasonably request in
connection with any audit or review of the Licenses or the Purchased Assets
which Purchaser may direct its representatives to make; and (e) furnish to
Purchaser and its representatives true, correct and complete copies of all
financial and operating statements of the Licenses and the Purchased Assets, and
all documents, agreements and instruments described herein or listed in the
Schedules relating thereto.
6.3 BUSINESS ORGANIZATION INTACT. The License Owner shall use its best
efforts to preserve and keep intact the business organization of the License
Owner.
6.4 EXCLUSIVE DEALING. From and after the date of this Agreement and
through the Closing Date, the License Owner shall not, directly or indirectly,
encourage, initiate or engage in any discussions or negotiations with, or
provide any information to, any Person, other than Purchaser and its
representatives, concerning the sale of all or substantially all of the Licenses
or any of the Purchased Assets.
6.5 ASSIGNMENT APPLICATION AND RELATED MATTERS. Promptly following the
execution and delivery of this Agreement and through the Closing, the License
Owner shall: (a) cooperate with Purchaser in the preparation of its portion of
the Assignment Application applicable to each of the Licenses, as applicable;
(b) not sell, transfer or otherwise encumber the Licenses to or with any other
third party; and (c) continue to own the Licenses in the ordinary and normal
course as to each of such Licenses prior to the date of execution of this
Agreement.
6.6 REASONABLE EFFORTS. Upon the terms and subject to the conditions
set forth in this Agreement, the License Owner shall use all reasonable efforts
to take, or to cause to be taken, all actions, and to do, or to cause to be
done, all things necessary, proper, convenient or advisable in order to
consummate the transactions contemplated by this Agreement.
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ARTICLE VII
COVENANTS AND AGREEMENTS OF PURCHASER PENDING CLOSING
7.1 CONFIDENTIALITY. Unless and until the transactions contemplated by
this Agreement are fully consummated, Purchaser shall hold all data and
information obtained with respect to the Systems, the Licenses and the Purchased
Assets in such degree of confidence as each of the Equipment Owners and License
Owners generally maintains such information, and shall not use such data or
information or disclose it to others, except (a) as permitted by SMR Advisory
for and on behalf of each of the Equipment Owners and License Owners; (b) to the
extent such data or information is published or is a matter of public knowledge,
(c) as may be required by law or judicial or administrative process or (d) as
may be required to secure any Governmental Approval.
7.2 ASSIGNMENT APPLICATION. Within a reasonable time following the
execution and delivery of this Agreement and receipt from each of the Equipment
Owners and License Owners of all required information, Purchaser shall prepare
and file with the FCC the Assignment Applications.
7.3 REASONABLE EFFORTS. Upon the terms and subject to the conditions
set forth in this Agreement, Purchaser shall use all reasonable efforts to take,
or to cause to be taken, all actions, and to do, or to cause to be done, all
things necessary, proper, convenient or advisable in order to consummate the
transactions contemplated by this Agreement.
ARTICLE VIII
SURVIVAL; INDEMNITIES
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
(a) All of the representations, warranties, covenants, agreements
and certifications of each of the Equipment Owners and License Owners set forth
in this Agreement or otherwise shall survive the Closing and the consummation of
the transactions contemplated by this Agreement, notwithstanding any audit or
investigation made by or on behalf of Purchaser.
(b) All of the representations, warranties, covenants, agreements
and indemnities of Purchaser set forth in this Agreement shall survive the
Closing and the consummation of the transactions contemplated by this Agreement,
notwithstanding any audit or investigation made by or on behalf of the Equipment
Owner and/or License Owner.
8.2 INDEMNIFICATION OF EQUIPMENT OWNER AND LICENSE OWNER. Purchaser
shall indemnify and hold harmless each of the Equipment Owners and License
Owners from, against and in respect of the full amount of any and all
Indemnified Expenses arising from, in connection with, or incident to any breach
or violation of any or all of the representations, warranties, covenants,
agreements, terms and conditions made by Purchaser in this Agreement or any
certificate, instrument or other document delivered by Purchaser to the
Equipment Owners and License Owners pursuant to this Agreement.
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8.3 INDEMNIFICATION OF PURCHASER. Each of the Equipment Owners and
License Owners shall severally indemnify and hold harmless Purchaser from,
against and in respect of the full amount of any and all Indemnified Expenses
arising from, in connection with, or incident to any breach or violation of any
or all of the representations, warranties, covenants, agreements, terms and
conditions made by the Equipment Owner and License Owner in this Agreement or to
which the Equipment Owner or License Owner is subject or any certificate,
instrument or other document delivered by the Equipment Owner or License Owner
to Purchaser pursuant to or in connection with this Agreement. Each of the
Equipment Owners and License Owners shall indemnify and hold harmless Purchaser
from, against and in respect of the full amount of any and all Indemnified
Expenses relating to any matter, cause or thing relating in any manner to their
respective Purchased Assets or the ownership, lease or operation of any of them,
arising prior to the Closing Date and asserted by any Person not a party to this
Agreement.
8.4 THIRD PARTY CLAIMS PROCEDURE.
(a) If any Person not a party to this Agreement shall make any
demand or claim, or shall file or threaten to file any suit, action or
proceeding, for which Purchaser may be entitled to indemnification pursuant to
the provisions of Section 8.3 of this Agreement, then, in any such event,
Purchaser shall give prompt written notice of the existence of any such demand,
claim, suit, action or proceeding to the Equipment Owner(s) and/or License
Owner(s), as the case may be. In any event, written notice shall be given not
later than the fifteenth day after a party shall first gain knowledge of the
existence of any such demand, claim, suit, action or proceeding.
(b) Each of the Equipment Owners and/or License Owners, as the case
may be, shall promptly retain legal counsel reasonably acceptable to Purchaser
to defend any such demand, claim, suit, action or proceeding. If the Equipment
Owner(s) and/or License Owner(s) shall fail for any reason to retain promptly
such legal counsel, then, in any such event, Purchaser shall retain (or cause
the Equipment Owner(s) and/or License Owner(s) to retain) legal counsel at the
expense of the Equipment Owner(s) and/or License Owner(s) to conduct such
defense. If the Equipment Owner(s) and/or License Owner(s) shall retain such
legal counsel, Purchaser may, at its option and at its expense, retain separate
legal counsel to represent its interest. The Equipment Owner(s) and/or License
Owner(s) and Purchaser and their respective legal counsel shall consult and
shall cooperate with one another regarding the defense, settlement and
compromise of any such demand, claim, suit, action or proceeding.
(c) If the Equipment Owner(s) and/or License Owner(s) shall have
retained legal counsel, then all decisions with respect to the defense,
settlement or compromise of such demand, claim, action, suit or proceeding shall
be within the discretion of the Equipment Owner(s) and/or License Owner(s);
provided, however, that the Equipment Owner(s) and/or the License Owner(s) shall
not defend, settle or compromise any such demand, claim, suit, action or
proceeding without the prior written consent of Purchaser, which consent shall
not be unreasonably withheld or delayed. If the Equipment Owner(s) and/or
License Owner(s) shall not have retained legal counsel, all decisions with
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respect to the defense, settlement or compromise of such demand, claim, suit,
action or proceeding shall be solely within the discretion of Purchaser.
ARTICLE IX
CONDITIONS PRECEDENT TO CLOSING
9.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF EQUIPMENT OWNERS. The
obligations of the Equipment Owners to consummate the transactions contemplated
hereby shall be subject to the satisfaction at or prior to the Closing Date of
all of the following conditions precedent (any or all of which may be waived, in
whole or in part, by the Equipment Owners in their discretion):
(a) No preliminary or permanent injunction or other order issued by
a court of competent jurisdiction or by any other Governmental Entity, nor any
Governmental Rule enacted or promulgated subsequent to the date of this
Agreement, which prohibits the consummation of the transactions contemplated
hereby shall be in effect.
(b) Purchaser shall have performed in all material respects the
obligations under this Agreement required to be performed by it as to the
Equipment Owners on or prior to the Closing Date.
(c) The representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all respects at and as of the
Closing Date as if made at and as of such time, except as affected by
transactions contemplated hereby and except to the extent that any such
representation or warranty is made as of a specified date (in which case such
representation and warranty shall have been true and correct as of such date).
(d) The Equipment Owners shall have received a certificate, dated
the Closing Date, of an officer of Purchaser to the effect that the conditions
precedent specified in paragraphs (b) and (c) of this Section 9.1 have been
satisfied.
9.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF LICENSE OWNERS. The
obligations of the License Owners to consummate the transactions contemplated
hereby shall be subject to the satisfaction at or prior to the Closing Date of
all of the following conditions precedent (any or all of which may be waived, in
whole or in part, by the License Owners in their discretion):
(a) No preliminary or permanent injunction or other order issued by
a court of competent jurisdiction or by any other Governmental Entity, nor any
Governmental Rule enacted or promulgated subsequent to the date of this
Agreement, which prohibits the consummation of the transactions contemplated
hereby shall be in effect.
29
(b) Purchaser shall have performed in all material respects the
obligations under this Agreement required to be performed by it as to the
License Owners on or prior to the Closing Date.
(c) The representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all respects at and as of the
Closing Date as if made at and as of such time, except as affected by
transactions contemplated hereby and except to the extent that any such
representation or warranty is made as of a specified date (in which case such
representation and warranty shall have been true and correct as of such date).
(d) The License Owners shall have received a certificate, dated the
Closing Date, of an officer of Purchaser to the effect that the conditions
precedent specified in paragraphs (b) and (c) of this Section 9.2 have been
satisfied.
9.3 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER. The
obligations of Purchaser to consummate the transactions contemplated hereby
shall be subject to the satisfaction at or prior to the Closing Date of all of
the following conditions precedent (any or all of which may be waived, in whole
or in part, by Purchaser in its discretion):
(a) No preliminary or permanent injunction or other order issued by
a court of competent jurisdiction or by any other Governmental Entity, nor any
Governmental Rule enacted or promulgated subsequent to the date of this
Agreement, which prohibits the consummation of the transactions contemplated
hereby shall be in effect.
(b) Each of the Equipment Owners and License Owners shall have
performed in all material respects their respective obligations pursuant to this
Agreement required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties of each of the Equipment
Owners and License Owners contained in this Agreement shall be true and correct
in all respects at and as of the Closing Date as if made at and as of such time,
except as affected by transactions contemplated hereby and except to the extent
that any such representation or warranty is made as of a specified date (in
which case such representation and warranty shall have been true and correct as
of such date).
(d) Purchaser shall have received a certificate, dated the Closing
Date, from each of the Equipment Owners and the License Owners to the effect
that the conditions precedent specified in paragraphs (b) and (c) of this
Section 9.3 applicable to each of the Equipment Owners and License Owners,
respectively, have been satisfied.
(e) All audits, due diligence and other investigations of each of
the Equipment Owners, the License Owners, the Licenses, the Systems, and the
Purchased Assets undertaken by Purchaser shall have been completed to the
satisfaction of Purchaser in its sole and absolute discretion.
30
(f) There shall not have occurred any material adverse change in
any of the Licenses, the Systems or the Purchased Assets.
(g) All Liens and indebtedness with respect to the Licenses, the
Systems and the Purchased Assets shall have been released.
(h) There shall have been received all of the waivers, consents and
approvals set forth on Schedule 4.14 attached hereto, without the addition of
any condition or requirement which could have a material adverse effect on any
of the Licenses, the Systems or the Purchased Assets, would increase the cost of
operation thereof or increase the Purchase Price.
(i) The FCC shall have granted its consent to the assignment of the
Licenses to Purchaser, without the addition of any condition or requirement
which could have a material adverse effect on the Licenses, increase the cost of
operation of the Purchased Assets or the Systems or increase the Purchase Price,
and such grant shall have become a Final Order.
(j) The following shall have been delivered to Purchaser:
(i) a written reaffirmation dated as of the Closing Date
addressed and delivered to the Purchaser by SMR Advisory for and on behalf of
the Equipment Owners and License Owners confirming as of the Closing Date each
of the representations, warranties and covenants of the Equipment Owners and
License Owners set forth herein;
(ii) Disclosure Letter and related Schedules dated as of the
Closing Date addressed and delivered to Purchaser in form and substance
satisfactory to Purchaser in its sole and absolute discretion;
(iii) written evidence of action taken by all of the equity
holders of each of the Equipment Owners and License Owners in favor of the
transaction contemplated herein , and the authority of SMR Advisory to act for
and on behalf of each of such entities as to the transaction contemplated
herein, in form and substance satisfactory to Purchaser in its sole and absolute
discretion;
(iv) one or more bills of sale conveying to Purchaser the
Licenses, the Systems and all of the Purchased Assets, free and clear of any and
all Liens;
(v) evidence of the assignment of all leases and other
agreements identified on Schedule 2.4 to the Disclosure Letter;
(vi) copies of all equipment manuals and material maintenance
records associated with the Purchased Assets; and
31
(vii) such other documents, assignments, bills of sale,
instruments of conveyance, and certificates of officers as may be reasonably
required by Purchaser to consummate this Agreement and the transaction
contemplated herein;
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 EXPENSES. All of the legal, accounting and other costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne and paid by the party to this Agreement
incurring such costs and expenses, and no party shall be obligated for any cost
or expense incurred by the other party to this Agreement.
10.2 GOVERNING LAW. This Agreement shall be governed by, and shall be
construed and interpreted solely in accordance with the laws of the State of
Florida, without giving effect to the principles of conflicts or choice of law
thereof.
10.3 JURISDICTION AND VENUE; SERVICE OF PROCESS; WAIVER OF TRIAL BY
JURY; ATTORNEYS' FEES. If any dispute or controversy shall arise between the
Equipment Owner and/or License Owner on the one hand and Purchaser on the other
pursuant to this Agreement, such dispute or controversy may only be brought for
resolution solely in the federal and/state courts located in Broward County,
Florida. Each of the Equipment Owner, License Owner and Purchaser hereby consent
solely to the jurisdiction and venue of such courts, and agree that they shall
not contest or challenge the jurisdiction or venue of such courts. Each of the
Equipment Owner, License Owner and Purchaser agrees that service of any process,
summons, notice or document, by United States registered or certified mail, to
its address set forth in or as provided in Section 10.4 below shall be effective
service of process for any action, suit or proceeding brought against it in any
such court. In recognition of the fact that the issues which would arise under
this Agreement are of such a complex nature that they could not be properly
tried before a jury, each of the Equipment Owner, License Owner and Purchaser
waives trial by jury. The prevailing party in any action and/or proceeding shall
be entitled to recover its reasonable attorneys' fees and costs from the other
party/parties.
10.4 NOTICES. Any and all notices and other communications given
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given when delivered by hand, or when delivered by mail, by registered or
certified mail, postage prepaid, return receipt requested, to the respective
parties at the following respective addresses:
If to Equipment Owner(s): To the address set forth on Schedule A
of the Disclosure Letter
32
If to License Owner(s): To the address set forth on Schedule A
of the Disclosure Letter
If to Purchaser: BizCom U.S.A., Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx,
Chairman and Chief Executive Officer
or to such other address as any party may from time to time give written notice
of to the others in accordance with the provisions of this Section 10.4.
10.5 ENTIRE AGREEMENT. This Agreement, together with the Disclosure
Letter and Schedules when attached hereto, shall constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and arrangements, both oral and
written, among the parties with respect to such subject matter. This Agreement
may not be amended or modified in any manner, except by a written instrument
executed by all of the parties hereto.
10.6 BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, the parties hereto and their respective heirs,
personal representatives, executors, legal representatives, successors and
permitted assigns.
10.7 NO ASSIGNMENT. Neither the Equipment Owners or the License Owners
shall (i) assign any of their respective rights or delegate any of their
respective obligations under this Agreement, (ii) transfer or assign their
respective Licenses to any Person or (iii) transfer or assign their respective
Purchased Assets to any other Person. Purchaser may assign its rights and
delegate its obligations pursuant to this Agreement to an Affiliate of
Purchaser, without the consent of the Equipment Owners and/or License Owners.
Upon the execution of any permissible assignment and assumption of the
obligations of Purchaser hereunder, Purchaser shall have no further obligations
hereunder.
10.8 WAIVER OF BULK TRANSFER LAWS. Purchaser waives compliance by each
of the Equipment Owners and License Owners with the laws of any jurisdiction
relating to bulk transfers which may be applicable to the transfer of the
Licenses and the Purchased Assets to Purchaser; provided, however, that each of
the Equipment Owners and Licenses Owners shall severally indemnify and hold
harmless Purchaser from, against and in respect of the full amount of any and
all Indemnified Expenses relating to any matter, cause or thing resulting or
arising from noncompliance by the Equipment Owners and/or License Owners, as the
case may be, with such bulk transfer laws.
10.9 RISK OF LOSS. Each of the Equipment Owners and License Owners
acknowledges and agrees that the risk of loss, damage or destruction of the
Purchased Assets owned by each shall be borne solely by the Equipment Owner(s)
and/or License Owner(s), as the case may be, through the Closing Date. In the
event of any loss, damage or destruction of the Purchased Assets prior to
Closing, the Equipment Owner(s) and/or License Owner(s), as the case may be,
shall promptly restore, replace or repair the lost, damaged or destroyed
property to its previous condition at its/their own cost, and such Equipment
33
Owner(s) and/or License Owner(s) shall have the right to use all insurance
proceeds to effect such restoration, replacement or repair and to retain all
excess insurance proceeds.
10.10 NO THIRD PARTY BENEFICIARIES. Nothing herein, expressed or
implied, is intended to or shall confer on any person or entity, other than the
parties hereto, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
10.11 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on them being valid in law.
If any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid by any court of competent
jurisdiction, then, in any such event, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, or section or sections had not been inserted.
10.12 FURTHER ASSURANCES. Each of the parties agrees to undertake and
effect all such actions and deliver all such instruments and other documents
necessary to effectuate the purposes and intent of this Agreement, including but
not limited to the assignment to the Purchaser of tower site lease agreements
relating to the Systems and insurance policies relating to the Purchased Assets
and operation of the Systems.
10.13 NO WAIVERS. The waiver by any party of a breach or violation of
any provision of this Agreement by any other party shall not operate nor be
construed as a waiver of any subsequent breach or violation, nor as a waiver by
any other party of such breach or violation nor as a waiver by any other party
of any subsequent breach or violation. The waiver by any party to exercise any
right or remedy it may possess shall not operate nor be construed as a bar to
the exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation, nor as a bar to the exercise of any right or
remedy by any other party.
10.14 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of any or all of the provisions hereof.
10.15 RULE OF CONSTRUCTION THAT AMBIGUITIES TO BE CONSTRUED AGAINST
DRAFTER NOT APPLICABLE. As all parties to this Agreement have been represented
by their respective counsel in connection with this Agreement, the rule of
construction that ambiguities shall be construed against the drafter shall not
be applicable.
10.16 COUNTERPARTS; TELECOPIER. This Agreement may be executed in any
number of counterparts and by the separate parties in separate counterparts and
34
via telecopier, each of which shall be deemed to constitute an original and all
of which shall be deemed to constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the Equipment Owners, License Owners and Purchaser
has executed and delivered this Agreement as of the date first written above.
EQUIPMENT OWNERS
By: SMR Advisory Group, LC
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxxxxx, President
LICENSE OWNERS
By: SMR Advisory Group, LC
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxxxxx, President
PURCHASER:
BIZCOM U.S.A., INC.
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, President
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